12 June 2003 Edition
Who's policing the Gardaí?
n the second part of her examination of the Gardaí, JOANNE CORCORAN looks at the measures necessary to create a policing service based on accountability rather than on a culture of denial
Every society needs a police service and every police service needs the support of the communities they serve.
In the last few years, the Garda Síochána has seen its reputation take a nosedive. Allegations of harassment and corruption have already resulted in two tribunals, with more looming on the horizon.
The most important principles of any public service are accountability, transparency and a respect for individual rights.
In each of these areas, the Gardaí are lacking. They have failed in their role as a police service, and they are fast losing the support of the communities they are supposed to serve. The Garda Síochána now, more than ever, needs a complete overhaul to redeem itself in the eyes of the Irish public.
Garda authorities and successive Ministers for Justice have always tried to deny problems with the force.
For years, calls for inquiries were resisted until the last minute, then confined to the narrowest possible remit. This ensured that any inquiries were as protracted as possible and ultimately, that their findings were restricted.
The consequences of a culture of denial are colossal. Firstly, trust has been undermined in the management of the force, driving a wedge between it and the public. More significantly, a culture of impunity has developed. Junior officers witnessed serious wrongdoing going unpunished and had good reason to expect that their breaches of the law would similarly go unchecked. This has resulted in countless rule bending and breaking.
The culture of denial cannot be addressed without political will. The current government has proven itself to be just as inept as its successors in tackling the problem. The setting up of the tribunals was a step in the right direction, but their narrow terms of reference, and the fact that there are only two of them, combined with the failure to instigate a real and thorough investigation of the force's structures, means that when this government's time in office is up, not much progress will have been made.
Debate on police reform is not new to these shores. Policing reform was, and still is, a key issue in the Good Friday Agreement and the Peace Process. The Agreement appointed an Independent Commission on Policing, headed by Chris Patten to report on how reform of the RUC could be achieved.
The Patten Commission's report quotes one European police officer as saying that no police organisation around the world had yet "finalised the transformation from force to service".
Accountability is at the centre of the report, and goes to the heart of police reform. Predominantly, it is concerned with whether the rule of law applies to members of the force.
There have been a small number of cases of criminal prosecution of members of the Gardaí for crimes such as traffic offences, bribery and assaults - including sexual assaults - carried out while off-duty. The Gardaí have argued that the existence of these prosecutions prove that there is no problem of impunity within the force. But this argument doesn't address the central issue of abuse of power by police officers for actions carried out on the job. Prosecutions for excessive use of force, or for using illegal means of interrogating suspects, for example, have been extremely rare.
In its report for 2001, the Garda Síochána Complaints Board (GSCB) indicated that of the 1,200 complaints that it received, only 199 were referred to the DPP and only three resulted in prosecution, the most damning indictment of its existence.
Members of the public who suffer rights violations at the hands of the Gardaí must have a fast and effective remedy. The need for an independent complaints' mechanism is one of the most important issues and is central to how accountability can be achieved.
Everybody involved in the policing debate has accepted that the introduction of an independent complaints mechanism is required. The existing system of investigating complaints against members of the Garda, the Garda Complaints Board, has many pitfalls.
The Board is composed of a chair and eight members, who are all appointed by the government. There is no specific appointment procedure involving any outside input into the board's selection. One of the members of the Board must be the Garda Commissioner or his appointee. Any board that includes a representative of the Garda Commissioner cannot be independent of the force it is meant to be investigating.
The Board is part-time and this has prevented the establishment of a public persona. An individual, such as an Ombudsman (Nuala O'Loan, for example), is much more likely to gain public confidence than a faceless, anonymous board.
In addition to its lack of independence, formal investigations initiated by the board are conducted by either a Garda Inspector or a Superintendent. This severely undermines any possibility that complainants will see the process as fair.
The Board does have the power to establish an external investigation in certain circumstances, but this power was only exercised once, after the Dublin May Day riots in 2002. The investigation was headed by a former Assistant Garda Commissioner and ran into severe difficulties when members of the force refused to cooperate with it. The Board does not have the crucial power to compel witnesses. Gordon Holmes, the Board's chair, has stated that of 150 gardaí contacted about the day, only 20 have responded and none would identify their fellow officers.
The length of time taken by the board to deal with complaints is also a problem. A basic requirement of any system of justice is that the system delivers an effective remedy in a reasonable time. At present, the resolution of complaints can take anything up to 18 months.
The European Committee on the Prevention of Torture (CPT) has highlighted the deficiency of the Garda complaints system on a number of occasions. In 1993, following its first visit to Ireland, it launched a critical attack on the Irish system of investigating complaints and called on the government to "reconsider the composition of the Garda Síochána Complaints Board and of the disciplinary tribunals appointed by it". The Irish authorities indicated that the "opinion of the Board and of disciplinary tribunals will be reviewed shortly in the light of the recommendation".
During the 1998 visit, Department of Justice, Equality and Law Reform officials confirmed that "the Act under which the Garda Síochána Complaints Board operates is currently being reviewed" but when the group conducted its third visit in 2002, the Complaints Board was still in place.
The UN Human Rights Committee has also addressed the issue of police accountability in Ireland. The Committee has recommended that, in the context of its current review of the Garda Complaints Act of 1986, "the State party take steps to ensure that the Garda Complaints Board is not dependant on the Gardaí for the conduct of investigations. Consideration should be given to the establishment of a police Ombudsman. In the case of death resulting from action by members of the Gardaí, the State party should ensure that allegations are investigated by an independent and accountable process."
It has become more and more clear that the time has come for a Garda Ombudsman.
Most groups accept that the Ombudsman must enjoy the power not only to investigate complaints that are received, but also to initiate investigations. In the conduct of the investigation he/she must also enjoy full investigative powers: the power to call, question and if necessary arrest suspects; the power to conduct searches; carry out forensic investigation; seize and if necessary compel the production of documents or other evidence. The Police Ombudsman of the Six Counties, Nuala O'Loan, has all these powers.
Any process of reform must firstly address outstanding cases of injustice. At a bare minimum, an Ombudsman must be able to review all the reports of the recent internal Garda inquiries that have been conducted and that still remain outside the public domain.
The Office of Garda Ombudsman would require adequate resources to carry out his/her functions effectively. The Police Ombudsman's office in the North employs 126 people and has an annual budget in the region of £6.7 million (§11 million). This investment, in a smaller jurisdiction, gives an indication of the extent of funding that would be required for the 26 Counties. In the long run, however, substantial financial costs would be averted. It has been suggested that approximately §6 million has been paid in compensation for assaults and wrongful arrests by members of the Garda Síochána between 1997 and 2002, and the tribunal costs are reaching astronomical figures.
The development of lines of communication between the police and the public is crucial. In the 26 Counties, the primary means of holding the Gardaí accountable has been through the Minister for Justice, Equality and Law Reform. The Garda Commissioner is responsible for the general direction and control of the force, with the Minister answerable to the Oireachtas for financial matters and internal regulations.
There will always be a difficulty in establishing a balance that ensures that the police remain free from political interference, while at the same time ensuring that parliament and the executive are able to exercise the proper and necessary roles of supervision over the force.
Patten looked at this issue and his findings are helpful.
One of the requirements he argued for was the setting up of a Policing Board, which among other things, would oversee high-level appointments within the force. The Policing Board would include members of the public.
The creation of a Garda Board would reduce, to a certain extent, the powers and functions of the Minster over the Gardaí, but would create a more acceptable level of communication between the public and the Gardaí and more transparency in the appointments process.
Patten sets out very clearly and starkly what should be the starting point of any discussion about policing. In paragraph 4.1 the report states: "Policing means protecting human rights."
Reform of structures is important, and very necessary, but real change in the quality of policing can only be made by addressing attitudes within the force. If there is a resistance to change, structural reform is unlikely to be successful. Training at the Garda College and on the job will be crucial in addressing this.
At present, promotion courses at the Garda College in Templemore involve two days of training in human rights and related concepts.
Given the large number of allegations against the force for brutality, especially in the questioning of suspects, it is blatantly clear that this is not enough.
In the 26 Counties, there has been a large number of criminal trials where conviction was based wholly or largely on the basis of a confession. Human rights activist have noticed this phenomenon and say it is a definite argument for human rights training.
The adoption of the Declaration of Professional Values and Ethical Standards reflects a very positive sign that human rights are being affirmed as core values by the Gardaí. Reform must, however, go much further than the adoption of a declaration.
One of the most important safeguards for the rights of those in detention is the electronic recording of police interviews. Recording the questioning of suspects protects them from ill-treatment and the gardaí from false accusations.
The introduction of electronic recording has been recommended by a number of sources, including the CPT and the Garda Complaints Board, but when the issue was raised in the Dáil in November 2002, the Minister for Justice responded to by saying that he was still "considering the matter in conjunction with garda management".
In addition to this concern, the CPT has questioned whether the right to consult a solicitor is effectively enjoyed by all those in custody. There has been some progress in extending the criminal legal aid scheme to cover consultations in police stations, but it is still unclear whether all those detained are aware of their rights to consult a solicitor.
Detainees do not, however, enjoy a right to have a lawyer present with them during interrogation. The CPT has emphasised that this right is one of the fundamental safeguards against ill-treatment of detainees.
Human Rights organisations have also criticised a number of the 26 Counties' laws, particularly that establishing the Special 'Criminal' Court. This juryless court has been used as a means of securing convictions, primarily against republicans but increasingly in recent years in criminal cases also.
It does not specify the cases which are to be assigned to that court, but leaves it to the broadly defined discretion of the DPP. The Court works in conjunction with the Offences against the State Act. Under that act, periods of detention without charge have been increased, persons may be arrested on suspicion of being about to commit an offence, and the majority of persons arrested are never charged with an offence. The CPT has also expressed concern about the circumstances covered in the Act, under which, failure to respond to questions may constitute evidence supporting the offence of belonging to a prohibited organisation. Legal assistance and advice may not be available until a person has been charged.
The seven day period of detention without charge under the Drug Trafficking Act, when legal aid is not available to detainees between arrest and charge, is also a law which must be reformed.
The basic nature of policing is an exercise of public administration and the provision of a public service.
Patten clearly recommends that neighbourhood policing should be the core function of policing in the Six Counties. At present, community policing is a peripheral, rather than central aspect of Garda operational strategy.
Along with the general decentralisation of Garda structures, neighbourhood policing would ensure that the Gardaí are more accountable and responsive to local policing needs.
The 26 Counties has yet to have its own Patten type report, although it has been proven time and time again that something along those lines is needed.
The Morris and McBrearty Tribunals, the Fullerton case and the May Day riots are just some of the reasons why.
In the absence of its own report, perhaps it is time for the 26-County government to consider implementing Patten's.
Every society needs a police service and every police service needs the support of the communities they serve.
In the last few years, the Garda Síochána has seen its reputation take a nosedive. Allegations of harassment and corruption have already resulted in two tribunals, with more looming on the horizon.
The most important principles of any public service are accountability, transparency and a respect for individual rights.
In each of these areas, the Gardaí are lacking. They have failed in their role as a police service, and they are fast losing the support of the communities they are supposed to serve. The Garda Síochána now, more than ever, needs a complete overhaul to redeem itself in the eyes of the Irish public.
Culture of denial
Garda authorities and successive Ministers for Justice have always tried to deny problems with the force.
For years, calls for inquiries were resisted until the last minute, then confined to the narrowest possible remit. This ensured that any inquiries were as protracted as possible and ultimately, that their findings were restricted.
The consequences of a culture of denial are colossal. Firstly, trust has been undermined in the management of the force, driving a wedge between it and the public. More significantly, a culture of impunity has developed. Junior officers witnessed serious wrongdoing going unpunished and had good reason to expect that their breaches of the law would similarly go unchecked. This has resulted in countless rule bending and breaking.
The culture of denial cannot be addressed without political will. The current government has proven itself to be just as inept as its successors in tackling the problem. The setting up of the tribunals was a step in the right direction, but their narrow terms of reference, and the fact that there are only two of them, combined with the failure to instigate a real and thorough investigation of the force's structures, means that when this government's time in office is up, not much progress will have been made.
Where is the accountability?
Debate on police reform is not new to these shores. Policing reform was, and still is, a key issue in the Good Friday Agreement and the Peace Process. The Agreement appointed an Independent Commission on Policing, headed by Chris Patten to report on how reform of the RUC could be achieved.
The Patten Commission's report quotes one European police officer as saying that no police organisation around the world had yet "finalised the transformation from force to service".
Accountability is at the centre of the report, and goes to the heart of police reform. Predominantly, it is concerned with whether the rule of law applies to members of the force.
There have been a small number of cases of criminal prosecution of members of the Gardaí for crimes such as traffic offences, bribery and assaults - including sexual assaults - carried out while off-duty. The Gardaí have argued that the existence of these prosecutions prove that there is no problem of impunity within the force. But this argument doesn't address the central issue of abuse of power by police officers for actions carried out on the job. Prosecutions for excessive use of force, or for using illegal means of interrogating suspects, for example, have been extremely rare.
In its report for 2001, the Garda Síochána Complaints Board (GSCB) indicated that of the 1,200 complaints that it received, only 199 were referred to the DPP and only three resulted in prosecution, the most damning indictment of its existence.
Members of the public who suffer rights violations at the hands of the Gardaí must have a fast and effective remedy. The need for an independent complaints' mechanism is one of the most important issues and is central to how accountability can be achieved.
Everybody involved in the policing debate has accepted that the introduction of an independent complaints mechanism is required. The existing system of investigating complaints against members of the Garda, the Garda Complaints Board, has many pitfalls.
The Board is composed of a chair and eight members, who are all appointed by the government. There is no specific appointment procedure involving any outside input into the board's selection. One of the members of the Board must be the Garda Commissioner or his appointee. Any board that includes a representative of the Garda Commissioner cannot be independent of the force it is meant to be investigating.
The Board is part-time and this has prevented the establishment of a public persona. An individual, such as an Ombudsman (Nuala O'Loan, for example), is much more likely to gain public confidence than a faceless, anonymous board.
In addition to its lack of independence, formal investigations initiated by the board are conducted by either a Garda Inspector or a Superintendent. This severely undermines any possibility that complainants will see the process as fair.
The Board does have the power to establish an external investigation in certain circumstances, but this power was only exercised once, after the Dublin May Day riots in 2002. The investigation was headed by a former Assistant Garda Commissioner and ran into severe difficulties when members of the force refused to cooperate with it. The Board does not have the crucial power to compel witnesses. Gordon Holmes, the Board's chair, has stated that of 150 gardaí contacted about the day, only 20 have responded and none would identify their fellow officers.
The length of time taken by the board to deal with complaints is also a problem. A basic requirement of any system of justice is that the system delivers an effective remedy in a reasonable time. At present, the resolution of complaints can take anything up to 18 months.
Critical reports
The European Committee on the Prevention of Torture (CPT) has highlighted the deficiency of the Garda complaints system on a number of occasions. In 1993, following its first visit to Ireland, it launched a critical attack on the Irish system of investigating complaints and called on the government to "reconsider the composition of the Garda Síochána Complaints Board and of the disciplinary tribunals appointed by it". The Irish authorities indicated that the "opinion of the Board and of disciplinary tribunals will be reviewed shortly in the light of the recommendation".
During the 1998 visit, Department of Justice, Equality and Law Reform officials confirmed that "the Act under which the Garda Síochána Complaints Board operates is currently being reviewed" but when the group conducted its third visit in 2002, the Complaints Board was still in place.
The UN Human Rights Committee has also addressed the issue of police accountability in Ireland. The Committee has recommended that, in the context of its current review of the Garda Complaints Act of 1986, "the State party take steps to ensure that the Garda Complaints Board is not dependant on the Gardaí for the conduct of investigations. Consideration should be given to the establishment of a police Ombudsman. In the case of death resulting from action by members of the Gardaí, the State party should ensure that allegations are investigated by an independent and accountable process."
Time for an Ombudsman
It has become more and more clear that the time has come for a Garda Ombudsman.
Most groups accept that the Ombudsman must enjoy the power not only to investigate complaints that are received, but also to initiate investigations. In the conduct of the investigation he/she must also enjoy full investigative powers: the power to call, question and if necessary arrest suspects; the power to conduct searches; carry out forensic investigation; seize and if necessary compel the production of documents or other evidence. The Police Ombudsman of the Six Counties, Nuala O'Loan, has all these powers.
Any process of reform must firstly address outstanding cases of injustice. At a bare minimum, an Ombudsman must be able to review all the reports of the recent internal Garda inquiries that have been conducted and that still remain outside the public domain.
The Office of Garda Ombudsman would require adequate resources to carry out his/her functions effectively. The Police Ombudsman's office in the North employs 126 people and has an annual budget in the region of £6.7 million (§11 million). This investment, in a smaller jurisdiction, gives an indication of the extent of funding that would be required for the 26 Counties. In the long run, however, substantial financial costs would be averted. It has been suggested that approximately §6 million has been paid in compensation for assaults and wrongful arrests by members of the Garda Síochána between 1997 and 2002, and the tribunal costs are reaching astronomical figures.
Policing Board
The development of lines of communication between the police and the public is crucial. In the 26 Counties, the primary means of holding the Gardaí accountable has been through the Minister for Justice, Equality and Law Reform. The Garda Commissioner is responsible for the general direction and control of the force, with the Minister answerable to the Oireachtas for financial matters and internal regulations.
There will always be a difficulty in establishing a balance that ensures that the police remain free from political interference, while at the same time ensuring that parliament and the executive are able to exercise the proper and necessary roles of supervision over the force.
Patten looked at this issue and his findings are helpful.
One of the requirements he argued for was the setting up of a Policing Board, which among other things, would oversee high-level appointments within the force. The Policing Board would include members of the public.
The creation of a Garda Board would reduce, to a certain extent, the powers and functions of the Minster over the Gardaí, but would create a more acceptable level of communication between the public and the Gardaí and more transparency in the appointments process.
Human Rights Training
Patten sets out very clearly and starkly what should be the starting point of any discussion about policing. In paragraph 4.1 the report states: "Policing means protecting human rights."
Reform of structures is important, and very necessary, but real change in the quality of policing can only be made by addressing attitudes within the force. If there is a resistance to change, structural reform is unlikely to be successful. Training at the Garda College and on the job will be crucial in addressing this.
At present, promotion courses at the Garda College in Templemore involve two days of training in human rights and related concepts.
Given the large number of allegations against the force for brutality, especially in the questioning of suspects, it is blatantly clear that this is not enough.
In the 26 Counties, there has been a large number of criminal trials where conviction was based wholly or largely on the basis of a confession. Human rights activist have noticed this phenomenon and say it is a definite argument for human rights training.
The adoption of the Declaration of Professional Values and Ethical Standards reflects a very positive sign that human rights are being affirmed as core values by the Gardaí. Reform must, however, go much further than the adoption of a declaration.
Detainees' rights
One of the most important safeguards for the rights of those in detention is the electronic recording of police interviews. Recording the questioning of suspects protects them from ill-treatment and the gardaí from false accusations.
The introduction of electronic recording has been recommended by a number of sources, including the CPT and the Garda Complaints Board, but when the issue was raised in the Dáil in November 2002, the Minister for Justice responded to by saying that he was still "considering the matter in conjunction with garda management".
In addition to this concern, the CPT has questioned whether the right to consult a solicitor is effectively enjoyed by all those in custody. There has been some progress in extending the criminal legal aid scheme to cover consultations in police stations, but it is still unclear whether all those detained are aware of their rights to consult a solicitor.
Detainees do not, however, enjoy a right to have a lawyer present with them during interrogation. The CPT has emphasised that this right is one of the fundamental safeguards against ill-treatment of detainees.
Change the laws
Human Rights organisations have also criticised a number of the 26 Counties' laws, particularly that establishing the Special 'Criminal' Court. This juryless court has been used as a means of securing convictions, primarily against republicans but increasingly in recent years in criminal cases also.
It does not specify the cases which are to be assigned to that court, but leaves it to the broadly defined discretion of the DPP. The Court works in conjunction with the Offences against the State Act. Under that act, periods of detention without charge have been increased, persons may be arrested on suspicion of being about to commit an offence, and the majority of persons arrested are never charged with an offence. The CPT has also expressed concern about the circumstances covered in the Act, under which, failure to respond to questions may constitute evidence supporting the offence of belonging to a prohibited organisation. Legal assistance and advice may not be available until a person has been charged.
The seven day period of detention without charge under the Drug Trafficking Act, when legal aid is not available to detainees between arrest and charge, is also a law which must be reformed.
Your local Garda
The basic nature of policing is an exercise of public administration and the provision of a public service.
Patten clearly recommends that neighbourhood policing should be the core function of policing in the Six Counties. At present, community policing is a peripheral, rather than central aspect of Garda operational strategy.
Along with the general decentralisation of Garda structures, neighbourhood policing would ensure that the Gardaí are more accountable and responsive to local policing needs.
Hope for the future?
The 26 Counties has yet to have its own Patten type report, although it has been proven time and time again that something along those lines is needed.
The Morris and McBrearty Tribunals, the Fullerton case and the May Day riots are just some of the reasons why.
In the absence of its own report, perhaps it is time for the 26-County government to consider implementing Patten's.